Premises Pointers - Volume VII, No. 11

As a public service, Hurwitz Fine P.C. is pleased to present this monthly newsletter providing summaries of and access to the latest premises liability decisions from the New York State and Federal courts. The primary purpose of this newsletter is to provide timely educational information and commentary for our clients and subscribers. In some jurisdictions, newsletters such as this may be considered Attorney Advertising.

NOTE FROM THE EDITOR:

This month, Hurwitz Fine was honored with the 2024 Allyship Award by the University at Buffalo Law Students with Disabilities and Neurodivergencies (LSDN). This award was given for “outstanding acts of allyship not only in our diversity statement, but also in our actions.” LSDN is dedicated to the education of neurotypical individuals and supporting those who have visible and invisible disabilities. Our internal DEI committee continues to strive to move the needle forward on our firm’s diversity efforts. I was fortunate to attend the event with members of our diversity committee and accept the award on behalf of the firm. It was truly an honor to be recognized by a group of students who are the ones that deserve recognition. I was beyond impressed by what I heard at the event. To learn more on our diversity initiatives, click here.
 
Also in awards, our firm honored Premises Pointers columnist Kaitlin A. Sines this week as she accepted the Business First “30 Under 30” Award. Each year, Business First selects 30 nominees under the age of 30 for their career achievements, leadership and initiative, community engagement, and potential to become a community leader on a grand scale. Congratulations, Kaitlin!
 
And in other news, our firm continues to grow with the addition of Russell J. Barbera Jr. to our litigation team. Russell joins our automobile liability, toxic tort, and labor law teams. Welcome, Russell!
 
As always, please do not hesitate to reach out to anyone on the Premises Pointers team with your questions or comments!

-Jody

Don’t forget to subscribe to our other publications:

Coverage Pointers: This biweekly electronic newsletter summarizes important insurance law decisions from appellate courts in New York State with the occasional snapshot across borders. Coverage Pointers, the electronic newsletter that started it all, continues to offer guaranteed publication every other Friday, and a read-at-a-glance summary of important decisions as they happen. Contact Dan Kohane at [email protected]  to be added to the mailing list.

Labor Law Pointers:  Labor Law Pointers offers a monthly review and analysis of every New York State Labor Law case decided during the month by the Court of Appeals and all four Departments. This e-mail direct newsletter is published the first Wednesday of each month on four distinct areas – New York Labor Law Sections 240(1), 241(6), 200 and indemnity/risk transfer. Contact Dave Adams at [email protected] to subscribe.

Medical & Nursing Home Liability Pointers:  Medical & Nursing Home Liability Pointers provides the latest news, developments, and analysis of recent court decisions impacting the medical and long-term care communities. Contact Liz Midgley at emm@hurwitzfine.com to subscribe.

Products Liability Pointers:   This monthly newsletter covers all areas of products liability litigation, including negligence, strict products liability, breach of warranty claims, medical device litigation, toxic and mass torts, regulatory framework and governmental agencies. Contact Chris Potenza at [email protected] to subscribe. 

 
Retail, Restaurant and Hospitality Happenings Around New York State and Beyond
By: Jody E. Briandi [email protected] 

04/03/2024      Reyna v. Target Corporation
United States District Court, Southern District of New York
Defendant’s motion for summary judgment granted even with testimony from a non-party witness who observed wet spots about 10 feet away from the area of plaintiff’s fall about 15 minutes before the fall.

Plaintiff slipped and fell while grabbing a shopping cart located in hallway that connected the parking garage to the store. She observed a puddle on the floor after fall. She testified she did not know how long the liquid was on the floor before her fall or where it came from. A non-party witness testified to walking through the same area about 15 minutes before plaintiff’s fall. She testified she noticed a wet are two meters from the entrance that she described as only wet spots that were not easily noticeable and not a puddle. The witness did not alert anyone at Target about this observation. The court did not find this testimony persuasive because the wet spots were not in the same area – they were 10 feet away – and plaintiff’s testimony was similarly inclusive because there was nothing about her description of the liquid that demonstrated it was there for an appreciable amount of time.

04/04/2024       Wendy-Geslin v. Oil Doctors
Appellate Division, Second Department
Based on the special use doctrine, plaintiff, who slipped and fell over a hose on a sidewalk, is able to proceed against the defendant restaurant who hired defendant Oil Doctors to clear its grease trip and in doing so used the hose the plaintiff slipped on.

The plaintiff, Margaret Wendy-Geslin, allegedly tripped over a hose on the sidewalk abutting a property owned by the defendant 233 East 70th Street Owners Corp. The hose belonged to the defendant Oil Doctors, who were hired by the defendant New Ko-Sushi Japanese Restaurant, Inc. (doing business as KoSushi) to clean its grease trap. The plaintiff sued to recover damages, and both the Owners Corp. and KoSushi separately moved for summary judgment to dismiss the complaint against them. The court ruled to deny KoSushi's motion and granted Owners Corp.'s motion for summary judgment to dismiss the complaint against it. KoSushi appealed the denial of its motion, but the appellate court affirmed the lower court's decision. The court found that KoSushi failed to establish that it did not make special use of the sidewalk by hiring Oil Doctors to clean its grease trap, which involved placing a potential tripping hazard across the sidewalk. Additionally, KoSushi did not demonstrate that the work performed by Oil Doctors was not inherently dangerous. Regarding Owners Corp.'s motion for summary judgment, the court reversed the lower court's decision. It found that Owners Corp. failed to show that it lacked constructive notice of the alleged dangerous condition on the sidewalk, as there was no evidence presented that it inspected the work performed by Oil Doctors or had insufficient time to do so. As a result, the court affirmed the denial of KoSushi's motion and reversed the granting of Owners corp.'s motion, allowing the case to proceed to trial.

04/04/2024       Mitkish v. Target Corporation  
United States District Court, Eastern District of New York
Plaintiff ordered to appear at an IME even though the location of the exam was not in the location where the plaintiff resided or where the action was filed – moral of the story is to avoid asserting baseless objections without good cause. 

In this case, a dispute arose over the timing and location of plaintiff’s Independent Medical Examination. The defendant noticed a pre-surgical IME of the plaintiff. Defendant’s position was that the IME was necessary before plaintiff’s surgery because the surgery would materially alter plaintiff’s physical condition. In an effort to get the exam conducted before the scheduled surgery date, the location of the exam was in New Jersey rather than New York (Long Island) where the plaintiff resided and where the action was commended. Plaintiff objected and refused to move the IME date and refused to appear in New Jersey. The court noted that the plaintiff did not identify why she could not appear in New Jersey, only that she refused to do so. The court ultimately concluded that a Rule 35 examination is “usually held in the location in which the party filed suit[,]” however, the “general rule" is that Rule 35 examinations be “conducted at a time and place that is not inconvenient to the party being examined.” Here, the court found that the location of the exam was a reasonably short distance from where plaintiff resides and therefore the court ordered her to appear.

Labor & Employment for Retailers, Hospitality, and School District Litigation
By: Anastasia M. McCarthy [email protected] 

Dear Readers,

While I truly believe the biggest news in town is the return of Lindy Ruff, there are two pieces of big news in the labor & employment world that are probably more important.  

First, the Federal Trade Commission has officially issued a final rule banning non-competes in the U.S. The rule renders the vast majority of existing non-competes unenforceable and prohibits the use of new non-competes going forward. One exception allowing existing non-competes to remain in force and effect are those that are already in place for senior executives (workers making more that $151,164 per year and are in policy-making roles). Regardless, employers cannot enter into, or seek the enforcement of, any new non-competes, even for senior executives.

Employers with current non-competes in place for employees, other than those in senior executive roles, must provide notice to those employees stating that the employer will not seek the enforcement of non-competes that are currently in place. The FTC has provided model language for employers, which is available here. The rule will become 120 after it is published in the Federal Register.

Second, N.Y. has officially expanded Paid Family Leave to include 20 hours of paid prenatal leave. In addition to the 12 weeks of paid leave for a qualifying reason (such as the birth or adoption of a child or caring for a sick relative), pregnant employees are now afforded an additional 20 hours of prenatal leave to attend appointments for prenatal care. Prenatal leave may be taken in hourly increments and officially takes effect Jan. 1, 2025.

If you have questions about how either of these changes impact you, or your business, please call us. For more information on our Labor & Employment team, contact us here.  We are happy to chat!

Homeowner Liability, Recreational Accidents, and Discovery Angles
By: Marc A. Schulz [email protected]

Hello Subscribers,

Spring is a great time for reflection, assessing the status of one’s goals, and looking forward to all we will conquer in the future. This month, I report on two post-note of issue discovery cases, which are great reminders of the consequences of failing to abide by the court’s scheduling orders and local rules. Pursuant to NYCEE 202.21(e), parties to an action have only 20 days from service of a note of issue to move to vacate it, and the court may vacate the note of issue if it appears that a material fact in the certificate of readiness is incorrect. After the expiration of the 20-day period, no such motion shall be allowed except for “good cause.” Good cause is established when the party seeking post-note of issue discovery demonstrates unusual or unanticipated circumstances and substantial prejudice. Pursuant to NYCEE 202.21(d), “unusual or unanticipated circumstances develop subsequent to the filing of a note of issue and certificate of readiness which require additional pretrial proceedings to prevent substantial prejudice.” Feel free to reach out with any post-note of issue discovery questions you may have, including may constitute as “substantial prejudice”…
 
Until next issue, enjoy the warmer weather that comes with spring!
 
Marc
 
04/04/2024          Kenney v Essex Mgt. Co.
Appellate Division, First Department 
Plaintiff’s motion to extend the deadline to file the note of issue denied because discovery had been waived, pursuant to the court’s final scheduling order.
 
The trial court denied plaintiff’s motion to extend the deadline to file the note of issue for 30 days. The First Department unanimously affirmed the trial court’s decision. Although plaintiff explained that the parties had not completed discovery because they reached a tentative settlement, the final scheduling order clearly stated that there would be “no stay of discovery pending motion practice, settlement proceedings, or ADR,” and that depositions and other discovery would be “automatically waived and precluded” if not completed by the deadlines set in the order. Accordingly, the Court held that discovery had been waived and precluded before the motion was filed.
  
04/04/2024          Sanquintin v Cogliture
Appellate Division, First Department
Defendant improperly used notice to admit seeking to validate and authenticate photos that may have been taken before plaintiff’s accident such that plaintiff was entitled to a protective order.
 
Defendant served a notice to admit six months after the note of issue was filed. Defendant’s notice to admit requested plaintiff to admit or deny whether photographs were a “fair and/or correct representation” of screen shots from various social media accounts with highlighted dates and dates of when the screenshots of the photos were taken. The notice to admit did not ask plaintiff to admit or deny whether the photos were taken after the accident. The trial court denied plaintiff’s motion for a protective order, pursuant to CPLR 3103, striking defendant’s notice to admit.
 
The First Department unanimously reversed the trial court's decision and granted plaintiff’s motion. The notice to admit would not serve to exclude factual issues from trial and would only raise new issues that should have been resolved during discovery in this matter. The Court also noted that defendant did not demonstrate any unusual or unanticipated circumstances that would warrant permitting him to conduct discovery after the filing of the note of issue (see 22 NYCRR 202.21[d]).

Pushing Buttons: The Ups & Downs of Vertical Transportation Law
By: Scott D. Kagan [email protected]

Ichthyosauria is ancient Greek for “fish lizard.”  These large extinct marine reptiles thrived during the Mesozoic era (based on fossil evidence). Experts have now identified the bones of a new species of an “enormous” Ichthyosaur.  Estimates suggest this new species may exceed 82 feet in length (or the size of a blue whale). The new genus and species are Ichthyotitan Servernensis. The bones are estimated to be 202 million years old, dating to the end of the Triassic period.  Thankfully, these monsters are no longer walking the earth. 
 
I hope you enjoy the ride. 
 
Scott

4/02/2024                  Ford v. Campus Realty LLC, et al.  
Appellate Division, First Department
Lack of Full-Service Agreement Proves Fatal for Property Owner
 
Plaintiff alleged sustaining injuries when an elevator (the “Elevator”) within a building owned by Campus skipped floors and crashed into the basement (the “Incident”).  Campus contracted with Amber to maintain the Elevator.  The Contract expressly provided that Amber did not “assume any management or control,”  which remained exclusively with Campus.  Amber was not required to make repairs but only to perform monthly maintenance.  In other words, the Contract was not a full service agreement. 
 
Defendants Campus Realty LLC (“Campus”) and Amber Elevator Inspections, Inc. (“Amber”) moved for summary judgment.  Campus’ motion was denied.  Amber’s motion was granted.  On Appeal, the First Department affirmed reasoning that the Court properly concluded that Amber successfully demonstrated it was not liable for Plaintiff’s injuries because it did not owe a duty.  Plaintiff was not a party to the maintenance contract and none of the Espinal exceptions applied.  See Espinal v. Melville Snow Contrs., 98 N.Y.2d 136, 140 (2002).  Amber did not launch a force or instrument of harm by making the Elevator less safe than it was before performing maintenance nor did Amber place Plaintiff in a more vulnerable position than she would have been before performing maintenance.  The second exception did not apply because there was no evidence that Plaintiff relied on Amber’s performance of its duties.  With respect to the third exception, the Contract expressly stated that Campus retained “exclusive” control over repairs to the Elevator.  Amber was responsible for maintenance only.  Evidence submitted revealed that no repairs were performed without express approval from Campus.      
 
Campus’s motion was properly denied as triable issues of fact existed concerning whether the Incident occurred based upon conflicting expert affidavits.  Moreover, contradictory evidence existed as to notice.  Finally, with respect to rep ipsa, triable issue of fact existed that a jury may find that an elevator skipping floors and crashing into the basement does not ordinarily occur in the absence of negligence and evidence existed that Campus retained exclusive control at the time of the Incident.   
 
The highlight of this case is the lack of full-service agreement between Campus and Amber.  If a full-service agreement was in place, the results may have been different.   
 
Affirmed. 
 
3/29/2024                  Burgess v. LEC Consulting and Inspection Group Inc., et al.  
Supreme Court, New York County
Lack of Full-Service Agreement Proves Fatal for Property Owner
 
Plaintiff alleged sustaining injuries when she was struck by an elevator (the “Elevator”) door (the “Incident”) at her place of employment located at 37-11 Queens Boulevard, Queens, New York (the “Premises”).  Defendant, Champion Elevator Corporation (“Champion”), was the elevator maintenance company at the Premises. 
 
Security footage captured the Incident.  Champion alleged that the surveillance shows Plaintiff’s body had not fully crossed the threshold where the light sensors were located, which was why the sensors did not detect her presence.  Champion asserted that Plaintiff was not looking at the time of the Incident.  Plaintiff argued that she had crossed the threshold, and the sensors should have detected her presence.  Champion's expert asserted that the Elevator performed in accordance with specifications and industry standards, based on a site inspection performed almost five years after the incident.  Plaintiff's expert contended that the Elevator was defective because its door did not properly retract when Plaintiff's body came to a point where the sensors should have signaled the door to retract.  The experts further disagreed as to whether Champion had notice of the defect.    
 
An elevator maintenance company may be liable for failure to keep the Elevator in safe operating condition if it does not correct conditions of which it has knowledge or fails to take reasonable care to discover and correct unsafe conditions.  While Champion contended that it had no notice of any problem with the Elevator door (as it had not received any prior complaints), it failed to submit maintenance or inspection records, and thus failed to establish, prima facie, that it lacked notice of an unsafe condition related to the Elevator.  See Stewart v. World Elev. Co., Inc., 84 A.D.3d 491, 495 (1st Dept 2011).
 
In opposition, Plaintiff submitted evidence that the Elevator was issued violations during routine inspections in 2013, 2016, and 2016, and was rated unsatisfactory during safety testing from 2014 to 2018.  This presented triable issues as to whether Champion was on notice of an unsafe condition related to the elevator.
 
Motion Denied.

Are You Fall Real? Slip and Fall/Snow and Ice/Storm in Progress/Espinal
By: Patrice C. S. Melville [email protected]

Hi Readers,

Well, I don’t think I am jinxing us by stating that spring is knocking! However, with the spring season comes April showers and, of course, some slip-and-fall accidents. This month’s offering examines two very recent Second Department decisions that emphasize the importance of specificity and (yes, I am saying it again) accurate record-keeping. As we close out the month of April, watch out for those slippery conditions.
 
4/24/2024            Anita Venezia Rogers v. Stop & Shop Supermarket Company, LLC
Appellate Division, Second Department
Evidence of when an accident location was last cleaned or inspected in relation to a plaintiff’s accident can help to establish a lack of constructive notice.
 
The plaintiff alleged that she was injured when she slipped and fell on a puddle in the dairy section of a supermarket owned and operated by the defendant, Stop & Shop Supermarket Company, LLC (“Stop & Shop”). Stop & Shop moved for summary judgment dismissal arguing that it did not create or have actual or constructive notice of any dangerous condition on its premises. In support of its motion, Stop & Shop submitted video, deposition testimony, and an affidavit of its employee who inspected the area less than nine minutes before the plaintiff fell to prove that it did not create or have actual or constructive notice of the alleged dangerous condition. The Supreme Court granted Stop & Shop’s motion, finding that Stop & Shop established its prima facie burden and that the plaintiff failed to raise a triable issue of fact. Plaintiff filed a motion to reargue her opposition to Stop & Shop motion, which was denied. Plaintiff then appealed from the Order granting Stop & Shop’s motion.
 
On appeal, the Appellate Division held that Stop & Shop established its lack of constructive notice by submitting evidence that the accident site was last inspected nine minutes prior to the plaintiff’s fall and affirmed the lower court’s decision.
 
4/17/2024           Irma Alvarez v. Staten Island Rapid Transit Operating Authority
Appellate Division, Second Department
A plaintiff's inability to identify the cause of the plaintiff’s fall is fatal to a negligence cause of action.
 
The plaintiff, a commuter, alleged that she slipped and fell while walking toward a railway turnstile at the St. George Terminal in Staten Island. The plaintiff commenced suit against Staten Island Rapid Transit Operating Authority (“SIRTOA”) to recover for her alleged injuries. During her deposition, however, the plaintiff testified that she did not know what caused her to fall and that she did not recall seeing garbage or liquid on the floor before or after her fall. SIRTOA moved for summary judgment dismissal on the grounds that the plaintiff could not identify the cause of her fall. The Supreme Court denied SIRTOA’s motion. SIRTOA appealed.
 
On appeal, the Appellate Division reasoned that in a slip-and-fall case, a plaintiff's inability to identify the cause of his or her fall is fatal to a negligence cause of action since the trier of fact would be required to base a finding of proximate cause upon nothing more than speculation. Further, the Court noted that though causation can be established with circumstantial evidence if a plaintiff is unable to personally state how an accident occurred, the record must render the other possible causes sufficiently remote to enable the trier of fact to reach a verdict based upon the logical inferences to be drawn from the evidence. In other words, a negligence action cannot be sustained absent proof of a reason for a fall other than the inherently slippery condition of the floor. The Appellate Division found that SIRTOA established its prima facie entitlement to judgment as a matter of law by submitting the transcript of the plaintiff’s testimony which proved she could not identify the cause of her fall without engaging in pure speculation. 

School District & Municipal Liability
By: Jennifer I. Lopez [email protected]

Greetings:

4/18/2024             Morrison v. New York City Housing Authority
Court of Appeals
Defendant’s routine inspection and reasonable cleaning schedule sufficient to establish lack of notice of specific hazardous condition that was only hazardous when wet.
 
Plaintiff brought this premises liability action for damages from injuries he sustained when he slipped and fell on a wet substance on the stairs of a building owned by defendant, New York City Housing Authority (NYCHA). The Court of Appeals affirmed the Appellate Division’s decision to grant defendant’s motion for summary judgment on the issue of notice.

For context, Plaintiff initially argued that defendant was liable because defendant negligently painted the treads on the stairs such that the treads had an “inadequate coefficient of friction when wet.” A review of the Supreme Court and Appellate Division decisions shows that defendant made a prima facie showing that it neither created nor had notice of the transient condition of a wet or slippery substance at the specific incident location, and it followed a proper and reasonable inspection and cleaning schedule on the day of the accident. In opposition, plaintiff’s evidence in the form of expert witness testimony and building inspection reports did not indicate the specific staircases or floors with unsatisfactory conditions and did not specify the nature of the unsatisfactory condition. Accordingly, Plaintiff’s evidence was insufficient to rebut defendant’s prima facie showing that it neither created nor knew of the specific hazard and its location.

The Court of Appeals refined the rationale in affirming the decision to grant defendant’s motion for summary judgment, saying that since the alleged hazardous condition existed only when the stairs were wet – effectively using plaintiff’s characterization of the hazardous condition against him – the defendant established it was entitled to summary judgment by demonstrating that it did not affirmatively create the wet condition or have actual nor constructive notice of that condition.
 
3/21/2024           Jaime v. City of New York
Court of Appeals
Whether municipality timely acquired knowledge of essential facts constituting claims is vital to determining whether to grant petitioner’s leave to file late notice of claim.
 
In separate actions, respective petitioners who were also detainees sought leave to file late notice of claims against New York City. The first detainee sought leave to file a late notice of claims two years after the underlying incident; and the second detainee, between seven months to almost two years after various incidents occurred. At the trial and intermediate court levels, the petitions were granted and affirmed respectively. In a single decision, the Court of Appeals reversed all previous decisions granting leave to file late notice of claims on behalf of both petitioners, finding that there was an abuse of discretion by the Supreme Courts and Appellate Divisions that required reversal because: 1) the first detainee did not establish that the city acquired actual knowledge of essential facts constituting his claim and did not establish a reasonable excuse for his late notice of claim; and 2) the second detainee did not establish that the city acquired knowledge of essential facts constituting his claims.
 
In weighing whether the previous courts had abused discretion in granting two detainees’ petitions to file late notice of claims, the Court of Appeals considered various factors prescribed by N.Y. General Municipal Law § 50-e, but emphasized the importance of one factor in particular: whether the municipality acquired actual knowledge of the essential facts constituting the claim within 90 days of the claim’s accrual or within a reasonable time thereafter. The Court highlighted the original policy considerations behind the notice of claim, which is “to alert the municipality to the existence of the claim so that it can promptly investigate and preserve any relevant evidence before the passage of time renders such unavailable or lessens its probative value.”

The Court of Appeals acknowledged that other factors in determining whether leave to file late notice of claim is appropriate is a consideration of “all other relevant facts and circumstances”; whether the municipality would be substantially prejudiced by service of the late notice of claim; and whether petitioner had a reasonable excuse for failing to serve a timely notice of claim. Nevertheless, the decision to grant or deny leave to file a late notice of claim is within the trial court’s broad discretion but must be supported by record evidence.
 
The opinion is lengthy, but in summary, the following facts were not sufficient to establish that the municipality had previous notice of the alleged claims, or otherwise did not merit late filing of notice of claims because they were not supported by the record:
 
First petitioner

1. NYPD officers and the District Attorney’s Office mere participation in the detainee’s arrest and prosecution does not establish that the City acquired actual knowledge of the essential facts constituting his false arrest and malicious prosecution claims. To hold that the municipal employee’s alleged participation in intentional tort would create de facto exception to the notice of claim requirement for various types of claims.
2. Alleged existence of records without evidence of the contents of those records is insufficient to establish actual knowledge.
3. Note that the argument that a municipality would not be substantially prejudiced by late filing because it acquired timely actual knowledge requires threshold finding of actual knowledge.
4. Delays caused by the need to defend other charges or delays caused by the COVID pandemic may not be reasonable excuses for delayed notice of claim.

Second petitioner

1. Copies of grievances previously submitted to the municipality that do not directly relate to the underlying claim are insufficient to establish notice.
2. Allegations that the detainee sought medical attention for injuries he sustained from the incident underlying his claim and that the infirmary maintained records related to those injuries, without actual evidence or an affidavit related to same, did not establish that the City had actual knowledge of the essential facts constituting the claim.

In both cases, the Court of Appeals found that the lower courts’ determinations were not supported by respective records and therefore the courts abused their discretion in granting the petitions for leave to file a late notice of claim.

NEWSLETTER EDITOR
Jody E. Briandi
[email protected]

ASSISTANT EDITORS
Anastasia M. McCarthy
[email protected]

Marc A. Schulz
[email protected]

Scott D. Kagan
[email protected]

Patrice C.S. Melville
[email protected]

Ashley M. Cuneo
[email protected]

Kaitlin A. Sines
[email protected]

Jennifer I. Lopez
[email protected]